OCTOBER TERM, 1993
Syllabus
IZUMI SEIMITSU KOGYO KABUSHIKI KAISHA
v.
U. S. PHILIPS CORP. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL
CIRCUIT
No. 92-1123. Argued October 12, 1993-Decided November
30,1993
Petitioner Izumi Seimitsu Kogyo Kabushiki Kaisha was a party at
the first trial in an action brought against it and respondent
Windmere Corporation by respondent U. S. Philips Corporation, but
was not a party to the second trial, in which Windmere prevailed.
While the judgments from the second trial were on appeal,
respondents reached a settlement and filed a joint motion to vacate
the District Court's judgments. Izumi's motion to intervene in the
appeal for purposes of opposing vacatur was denied by the Court of
Appeals on the ground that Izumi was not a party to the action, and
the court went on to find that vacatur was appropriate.
Held: The writ of certiorari is dismissed as
improvidently granted. The single question Izumi presented to this
Court for review is whether the courts of appeals should routinely
vacate district court final judgments at the parties' request when
cases are settled on appeal. However, in order to reach this
question, the Court would have to address a question not raised by
Izumi until its brief on the merits: whether the Court of Appeals
improperly denied Izumi's motion to intervene. Since the latter
question was neither presented in the petition for certiorari nor
fairly included in the question that was presented, as required by
this Court's Rule 14.1, it can be considered only if the Court
deems this to be an exceptional case. The case bears scant
resemblance to those cases in which the Court has made exceptions
to the Rule's provisions, for it is unlikely that any new principle
of law would be enunciated should review be undertaken. Moreover,
faithful application of the Rule helps ensure that the Court is not
tempted to engage in ill-considered decisions of relatively
factbound issues not presented in the petition in order to reach
the question on which certiorari was actually granted. It also
informs those seeking review that the Court strongly disapproves
the practice of smuggling additional questions into a case after
certiorari is granted.
Certiorari dismissed. Reported below:
971
F.2d 728.
28
Per Curiam
Herbert H. Mintz argued the cause for petitioner. With him on
the briefs were Robert D. Litowitz, Jean Burke Fordis, David S.
Forman, and William L. Androlia.
Garrard R. Beeney argued the cause for respondents.
With him on the brief were William E. Willis, John L. Hardiman,
Sheldon Karon, and Paul M. Dodyk.
Thomas G. Hungar argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were Acting
Solicitor General Bryson, Acting Assistant Attorney General
Schiffer, Acting Deputy Solicitor General Kneedler, Leonard
Schaitman, and John P. Schnitker.
*
PER CURIAM.
In order to reach the merits of this case, we would have to
address a question that was neither presented in the petition for
certiorari nor fairly included in the one question that was
presented. Because we will consider questions not raised in the
petition only in the most exceptional cases, and because we
conclude this is not such a case, we dismiss the writ of certiorari
as improvidently granted.
Petitioner was named as a defendant, along with respondent
Windmere Corporation, in an action brought by respondent U. S.
Philips Corporation in the District Court for the Southern District
of Florida claiming that the defendants had infringed Philips'
patent rights and engaged in unfair trade competition. Windmere
counterclaimed for antitrust violations. At the first trial of the
action, judgment was entered on a jury verdict for Philips on its
patent infringement claim, and neither Izumi nor Windmere appealed.
Philips also prevailed on Windmere's antitrust counterclaim, and
the District Court ordered a new trial on the unfair
competition
*Briefs of
amici curiae urging reversal were filed for
Sears Roebuck & Co. by
Roger D. Greer and
Kara F.
Cenar; and for Trial Lawyers for Public Justice by
Jill
E. Fisch and
Arthur H. Bryant.
Jay M. Smyser filed a brief for the Product Liability
Advisory Council, Inc., as
amicus curiae urging
affirmance.
29
claim. On Windmere's interlocutory appeal, the United States
Court of Appeals for the Federal Circuit reversed the judgment on
the antitrust counterclaim and remanded the case for a new trial.
U. S.
Philips Corp. v.
Windmere Corp.,
861 F.2d
695 (CA Fed. 1988), cert. denied, 490 U. S. 1068 (1989). Izumi
took no further part in the litigation.
A second jury found in favor of Windmere both on Philips' unfair
competition claim and on Windmere's antitrust counterclaim, and
judgment was entered in favor of Windmere on the latter for more
than $89 million. Philips appealed both judgments to the Federal
Circuit. Before the Court of Appeals decided the case, however,
Windmere and Philips reached a settlement wherein Philips agreed to
pay Windmere $57 million. Windmere and Philips also agreed jointly
to request the Court of Appeals to vacate the District Court's
judgments, although the settlement was not conditioned on the
Federal Circuit granting the vacatur motion. After Windmere and
Philips filed their joint motion to vacate, petitioner sought to
intervene on appeal for purposes of opposing vacatur.
The Court of Appeals denied Izumi's motion to intervene.
U. S.
Philips Corp. v.
Windmere Corp.,
971 F.2d
728, 730-731 (CA Fed. 1992). It reasoned that Izumi was not a
party to the second trial, and that its financial support of
Windmere's litigation as an indemnitor was not sufficient to confer
party status. The Court of Appeals also concluded that Izumi's
interest in preserving the judgment for collateral estoppel
purposes was insufficient to provide standing.1
Ibid. The
Court of Appeals proceeded to review the vacatur motion and
concluded that, because the settlement included all the parties to
the appeal, vacatur was appropriate.
Id., at 731.
Title 28 U. S. C. § 1254(1) provides, in relevant part:
1 Petitioner hoped to preserve the judgment for use in a suit
brought by Philips against Sears and Izumi in the United States
District Court for the Northern District of Illinois. As with
Windmere, Izumi has agreed to indemnify Sears' litigation
expenses.
30
Per Curiam
"Cases in the courts of appeals may be reviewed by the Supreme
Court ...
"(1) [B]y writ of certiorari granted upon the petition of any
party to any civil or criminal case, before or after
rendition of judgment or decree." (Emphasis added.)
Because the Court of Appeals denied petitioner's motion for
intervention, Izumi is not a party to this particular civil case.
One who has been denied the right to intervene in a case in a court
of appeals may petition for certiorari to review that ruling,
Automobile Workers v.
Scofield, 382 U. S. 205, 208209
(1965), but Izumi presented no such question in its petition for
certiorari. It presented a single question for our review: "Should
the United States Courts of Appeals routinely vacate district court
final judgments at the parties' request when cases are settled
while on appeal?" Because this question has divided the Courts of
Appeals,2 we granted certiorari. 507 U. S. 907 (1993). In its brief
on the merits, petitioner added the following to its list of
questions presented: "Whether the court of appeals should have
permitted Petitioner to oppose Respondents' motion to vacate the
district court judgment."
This Court's Rule 14.1(a) provides, in relevant part: "The
statement of any question presented [in a petition for certiorari]
will be deemed to comprise every subsidiary question fairly
included therein. Only the questions set forth in the petition, or
fairly included therein, will be considered by the
2 Like the Federal Circuit, the Second Circuit will generally
grant motions to vacate when parties settle on appeal. See
Nestle Co. v.
Chester's Market, Inc., 756 F.2d
280, 282-284
(CA2 1985). The Third, District of
Columbia, and Seventh Circuits will generally deny such motions.
See
Clarendon Ltd. v.
Nu- West Industries, Inc.,
936 F.2d
127 (CA3 1991);
In re United States, 927 F.2d
626 (CADC 1991);
In re Memorial Hospital of Iowa County,
Inc., 862 F.2d
1299 (CA7 1988). The Ninth Circuit requires district
courts to balance "the competing values of finality of judgment and
right to relitigation of unreviewed disputes."
Ringsby Truck
Lines, Inc. v.
Western Conference of Teamsters,
686 F.2d
720, 722 (1982).
31
Court."3 Unless we can conclude that the question of the denial
of petitioner's motion to intervene in the Court of Appeals was
"fairly included" in the question relating to the vacatur of final
judgments at the parties' request, Rule 14.1 would prevent us from
reaching it.
It seems clear that a challenge to the Federal Circuit's denial
of petitioner's motion to intervene is not "subsidiary" to the
question on which we granted certiorari. On the contrary, it is
akin to a question regarding a party's standing,4 which we have
described as a "threshold inquiry" that" 'in no way depends on the
merits'" of the case.
Whitmore v.
Arkansas, 495 U. S. 149, 155 (1990)
(quoting
Warth v.
Seldin, 422 U. S. 490, 500
(1975)).
We also believe that the question is not "fairly included" in
the question presented for our review.5 A question which is merely
"complementary" or "related" to the question presented in the
petition for certiorari is not" 'fairly included
3 The initial version of this Rule, promulgated in 1954, stated:
"The statement of a question presented will be deemed to include
every subsidiary question fairly comprised therein. Only the
questions set forth in the petition or fairly comprised therein
will be considered by the court." Rule 23.1(c), Rules of the
Supreme Court of the United States, 346 U. S. 951, 972 (1954). The
current version dates back to 1980, when we amended the Rules. The
1980 changes in syntax obviously did not alter the substance of the
Rule.
4 The Court of Appeals actually dismissed Izumi's motion in
terms of standing, concluding that Izumi did "not have standing to
oppose the joint motion."
U. S.
Philips Corp. v.
Windmere Corp., 971 F.2d
728, 731
(CA Fed. 1992).
5 We note that the fact that the parties devoted a portion of
their merits briefs to the intervention issue does not bring that
question properly before us.
Radzanower v.
Touche
Ross &
Co., 426 U. S. 148, 151, n. 3
(1976). Nor does "[t]he fact that the issue was mentioned in
argument ... bring the question properly before us."
Mazer
v.
Stein, 347
U. S. 201, 206, n. 5 (1954). Contrary to the dissent's
suggestion, see
post, at 35-36, the fact that Izumi
discussed this issue in the text of its petition for certiorari
does not bring it before us. Rule 14.1(a) requires that a
subsidiary question be fairly included in the
question
presented for our review.
32
Per Curiam
therein.'"
Yee v.
Escondido, 503 U. S. 519, 537
(1992). Thus, in
Yee, we concluded that the question whether
an ordinance effected a physical taking did not include the related
question of whether it effected a regulatory taking.
Ibid.
Whether petitioner should have been granted leave to intervene
below is quite distinct, both analytically and factually, from the
question whether the Court of Appeals should vacate judgments where
the parties have so stipulated. The questions are even less related
or complementary to one another than were the questions in
Yee.
The intervention question being neither presented as a question
in the petition for certiorari nor fairly included therein, "Rule
14.1(a) accordingly creates a heavy presumption against our
consideration" of that issue.
Ibid. Rule 14.1(a), of course,
is prudential; it "does not limit our power to decide important
questions not raised by the parties."
Blonder-Tongue
Laboratories, Inc. v.
University of Ill. Foundation,
402 U. S. 313,
320, n. 6 (1971). A prudential rule, however, is more than a
precatory admonition. As we have stated on numerous occasions, we
will disregard Rule 14.1(a) and consider issues not raised in the
petition" 'only in the most exceptional cases.'"
Yee, supra,
at 535 (quoting
Stone v.
Powell, 428 U. S. 465, 481, n. 15
(1976)); see also
Berkemer v.
McCarty, 468 U. S. 420, 443, n. 38
(1984) ("Absent unusual circumstances, ... we are chary of
considering issues not presented in petitions for
certiorari").6
6 Even before the first version of the current Rule 14.1(a) was
adopted, we indicated our unwillingness to decide issues not
presented in petitions for certiorari. As we stated in
General
Talking Pictures Corp. v.
Western Electric Co., 304 U. S. 175, 179
(1938): "One having obtained a writ of certiorari to review
specified questions is not entitled here to obtain decision on any
other issue." And as Justice Jackson stated, writing for a
plurality in
Irvine v.
California, 347 U. S. 128, 129-130
(1954): "We disapprove the practice of smuggling additional
questions into a case after we grant certiorari. The issues here
are fixed by the petition unless we limit the grant, as frequently
we do to avoid settled, frivolous or state law questions."
33
We have made exceptions to Rule 14.1(a) in cases where we have
overruled one of our prior decisions even though neither party
requested it. See,
e. g., Blonder-Tongue, supra, at 319-321.
We have also decided a case on nonconstitutional grounds even
though the petition for certiorari presented only a constitutional
question. See,
e. g., Boynton v.
Virginia, 364 U. S. 454, 457
(1960);
Neese v.
Southern R. Co., 350 U. S. 77, 78 (1955).
We must also notice the possible absence of jurisdiction because we
are obligated to do so even when the issue is not raised by a
party. See,
e. g., Lake Country Estates, Inc. v.
Tahoe
Regional Planning Agency, 440 U. S. 391, 398
(1979);
Liberty Mut. Ins. Co. v.
Wetzel, 424 U. S. 737, 740
(1976). And we may, pursuant to this Court's Rule 24.1(a),
"consider a plain error not among the questions presented but
evident from the record and otherwise within [our] jurisdiction to
decide." See,
e. g., Wood v.
Georgia, 450 U. S. 261,
265, n. 5 (1981); see generally R. Stern, E. Gressman, & S.
Shapiro, Supreme Court Practice § 6.26 (6th ed. 1986) (discussing
Rule 14.1(a) and its exceptions).
The present case bears scant resemblance to those cited above in
which we have made exceptions to the provisions of Rule 14.1. While
the decision on any particular motion to intervene may be a
difficult one, it is always to some extent bound up in the facts of
the particular case. Should we undertake to review the Court of
Appeals' decision on intervention, it is unlikely that any new
principle of law would be enunciated, as is evident from the briefs
of the parties on this question. As we said in
Yee, Rule
14.1(a) helps us "[t]o use our resources most efficiently" by
highlighting those cases "that will enable us to resolve
particularly important questions." 503 U. S., at 536. The Court of
Appeals' disposition of petitioner's motion to intervene is simply
not such a question.7
7 JUSTICE STEVENS in dissent urges that our disposition of
United States v.
Williams, 504 U. S. 36 (1992),
provides authority for reaching the merits of this case. We
disagree. There we applied a different prudential
34
STEVENS, J., dissenting
Should we disregard the Rule here, there would also be a natural
tendency-to be consciously resisted, of course-to reverse the
holding of the Court of Appeals on the intervention question in
order that we could address the merits of the question on which we
actually granted certiorari; otherwise, we would have devoted our
efforts
solely to addressing a relatively factbound issue
which does not meet the standards that guide the exercise of our
certiorari jurisdiction. Our faithful application of Rule 14.1(a)
thus helps ensure that we are not tempted to engage in
ill-considered decisions of questions not presented in the
petition. Faithful application will also inform those who seek
review here that we continue to strongly "disapprove the practice
of smuggling additional questions into a case after we grant
certiorari."
Irvine v.
California, 347 U. S. 128, 129 (1954)
(plurality opinion).
Izumi was not a party to the appeal below, and the Court of
Appeals denied its motion to intervene there. Because we decline to
review the propriety of the Court of Appeals' denial of
intervention, petitioner lacks standing under § 1254(1) to seek
review of the question presented in the petition for certiorari.
The writ of certiorari is therefore dismissed as improvidently
granted.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins,
dissenting.
When both parties to a case pending on appeal ask the appellate
court to vacate the judgment entered by the trial court because
they have settled their differences, should the court routinely
take that action without first considering its effect on third
parties? Subsumed within that question is the related question
whether an affected third party should
rule-the one which precludes our review of an issue that "was
not pressed or passed upon below."
Id., at 41 (internal
quotation marks omitted). Because the issue there
had been
passed upon by the lower court, see
id., at 39, we
reviewed it.
35
be allowed to intervene to object to the vacation of the
judgment. In this case the Court of Appeals for the Federal Circuit
answered both of those questions incorrectly.
Petitioner Izumi manufactures electric razors in Japan that it
sells to American distributors, including Windmere and Sears
Roebuck. It has indemnified those distributors against liability
for patent or trade dress infringement. Respondent Philips is a
competitor that has been engaged in protracted litigation with
Izumi's distributors. In a case filed by respondent in the Southern
District of Florida, the trial court entered a judgment dismissing
respondent's trade dress claims and awarding Windmere $89,644,257
plus attorney's fees, interest, and costs on an antitrust
counterclaim. In a second case filed by respondent in the Northern
District of Illinois, the District Court held that the Florida
judgment collaterally estopped respondent from pursuing certain
claims against Sears. Thereafter, respondent and Windmere settled
their differences on terms that included a payment to Windmere of
$57 million and Windmere's agreement to join in a motion to vacate
the Florida judgment.
Izumi was not a party to the settlement. Promptly after the
settling parties filed their motion in the Federal Circuit, Izumi
tried to object to the vacation of the Florida judgment. The court
denied the motion on the ground that Izumi lacked standing, because
it was not a party and its interest was insufficient to support
intervention. The court then granted the motion to vacate. When
that action was brought to the attention of the District Court in
Illinois, it reinstated claims against Izumi's indemnitee
(Sears).
Izumi filed a petition for certiorari presenting a single
question.1 The petition itself devoted an entire section to
refuting the Federal Circuit's argument that Izumi's interest
1 "Should the United States Court of Appeals routinely vacate
district court final judgments at the parties' request when cases
are settled while on appeal?" Pet. for Cert. i.
36
STEVENS, J., dissenting
was too insignificant to justify intervention.2 In its brief in
opposition, respondent argued that the intervention issue was not
properly raised.3 After consideration of respondent's arguments, we
nevertheless decided to grant certiorari. We might, of course, have
expressly directed the parties to argue the two questions
separately, but it is now apparent that such direction was
unnecessary because their briefs on the merits canvassed both
issues.
The question whether Izumi should have been allowed to intervene
in the Court of Appeals is a "subsidiary question fairly included"
in the question presented, Rule 14.1(a), because the answer to the
intervention question depends on the validity of the practice of
routinely granting settling parties' motions to vacate trial court
judgments. For if that routine practice is proper, then there is no
point in allowing intervention. On the other hand, if vacation
should ever be denied because of the potential impact on
third-party interests, it was error to deny intervention in this
case.4 If routine vacation is improper, the Court of Appeals'
reasons for denying intervention were clearly insufficient. Izumi
obviously had a stake in the outcome of the motion, because the
vacation of the Florida judgment significantly increased the
potential liability and litigation expenses of its indemnitee. The
fact that Izumi was not a formal party to the case before it sought
to intervene is irrelevant because the very purpose of intervention
is to acquire the status of a party.
2 The substantive portion of Izumi's petition for certiorari was
divided into four lettered sections. In the fourth, section D,
petitioner argued that the prospect of relitigation in Illinois and
Izumi's interest in the judgment against Windmere gave it "an
immediate and direct interest in challenging the propriety of
granting vacatur following settlement," and therefore that "Izumi
was entitled to intervene in the appeal for the purposes of
opposing vacatur." Pet. for Cert. 14, 15.
3 Brief in Opposition 2, 4-5.
4 See
National Union Fire Ins. Co. of Pittsburgh v.
Sea first Corp., 891 F. 2d 762, 764
(CA9 1989)
(intervention granted to allow nonparty to challenge vacation of
judgment).
37
Even if I were to concede that the intervention question is not
"fairly included" in the question presented, I would still think it
inappropriate to dismiss the writ of certiorari as improvidently
granted. In view of the fact that petitioner raised and discussed
the issue in its petition for certiorari, the Court's decision
today rests purely on the technicality that the petition failed to
frame a separate question to introduce this argument. Given the
Court's occasional practice of ordering parties to address
questions they have not raised,5 it is ironic that the omission in
this case should be given critical weight. Indeed, the Court's
decision punishes this technical error much more severely than it
has ever punished similar violations. Until today, the Court had
never dismissed a case because of a violation of Rule 14.1(a) or
its predecessors.6
To justify its decision, the majority quotes
Yee v.
Escondido, 503 U. S. 519 (1992), for
the proposition that Rule 14.1(a), although prudential, is
disregarded'" "only in the most exceptional cases,"'" 7
ante, at 32. But the majority omits the very next words,
which explain that it is proper to
5 Christianson v.
Colt Industries Operating
Corp., 484 U. S. 985 (1987) (directing parties to brief and
argue jurisdictional question);
Eisen v.
Carlisle
&
Jacquelin, 414 U. S. 908 (1973) (same);
Payne
v.
Tennessee, 498
6 Rule 14.1(a) itself dates only to 1990, but the 1990 revisions
merely renumbered a rule which has not substantially changed since
1954. Rule 21.1 (a) (1980) (identical language to present rule);
Rule 23.1(c) (1954) ("Only the questions set forth in the petition
or fairly comprised therein will be considered by the court"). The
Court never dismissed certiorari under either of these earlier
rules. Even under the harsher rule that governed between 1939 and
1954, which allowed consideration only of "questions specifically
brought forward by the petition," the Court never sanctioned
violations with dismissal of certiorari as improvidently granted.
Rule 38.2 (1939).
7The Court also notes that jurisdictional questions are a
traditional exception to the rule that an issue must fall under a
question presented,
ante, at 33, but the Court fails to
recognize that the issue here-the propriety of intervention-is
jurisdictional and thus falls within that exception.
38
STEVENS, J., dissenting
set aside the rule "where reasons of urgency
or of
economy suggest the need to address the unpresented question."
503 U. S., at 535 (1992) (emphasis added). Judicial economy is not
served by invoking prudential rules
"after we have granted
certiorari and the case has received plenary consideration on the
merits. Our decision to grant certiorari represents a commitment of
scarce judicial resources with a view to deciding the merits of one
or more of the questions presented in the petition."
Oklahoma
City v.
Tuttle, 471 U. S. 808, 815-816
(1985) (emphasis in original). See also
Canton v.
Harris, 489 U.
S. 378, 384 (1989). The Court recently used stronger language
when it refused to dismiss a case on prudential grounds raised and
rejected in the process of granting certiorari. The majority noted
that the dissent
"proposes that-after briefing, argument, and full consideration
of the issue by all the Justices of this Courtwe now decline to
entertain this petition for the same reason we originally rejected
it, and that we dismiss it as improvidently granted. That would be
improvident indeed. Our grant of certiorari was entirely in accord
with our traditional practice, though even if it were not it would
be imprudent (since there is no doubt that we have jurisdiction to
entertain the case) to reverse course at this late stage."
United States v. Williams, 504 U. S. 36, 40
(1992).8
8The majority notes that
Williams concerned a different
prudential rule-the one which precludes review of an issue that
"'was not pressed or passed upon below'" -but fails to provide any
reason why violation of that rule should be forgiven more easily
than violation of Rule 14.1(a).
Ante, at 34, n. 7. If
anything, one might think that the Court should be more reluctant
to waive the rule requiring presentation of the issue below,
because it ensures the adequate development of the record and
protects the Court from deciding questions that could have been
resolved by the lower courts. In addition, although the majority
claims that the rule was satisfied "because the issue there
had
been passed upon by the lower court," it fails to note that
part of the reason the rule was deemed to be satisfied was that the
party had raised and the Court of Appeals had de-
39
Our opinion in
Yee explains why Rule 14.1(a) ordinarily
bars consideration of unpresented questions. First, the rule
provides notice and prevents surprise, thus ensuring full briefing;
second, the rule allows the Court to select only cases which
present important questions and to focus its attention on those
questions.
Yee, 503 U. S., at 535-536. N either reason
applies here. There was no surprise, because the intervention issue
was raised in the petition for certiorari and in petitioner's
opening brief, and respondent argued the propriety of denying
intervention at every opportunity. Nor did failure to use the word
"intervention" in the "Question Presented" section of the petition
for certiorari interfere with the efficient selection of cases for
plenary review, since the Court was fully aware that the issue
needed to be resolved in order to reach the vacation issue. It is
not surprising that
Yee's explanation of Rule 14.1(a) does
not fit the circumstances of this case, because Rule 14.1(a) was
never intended to provide the basis for dismissal, and, before
today, was never used for that purpose.9
The Court today suggests an additional argument for strict
enforcement of Rule 14.1(a), that "there would also be a natural
tendency-to be consciously resisted, of course-to reverse the
holding of the Court of Appeals on the intervention question in
order that we could address the merits of the question on which we
actually granted certiorari."
Ante, at 34. Reliance on such
a flimsy argument underestimates the character and the quality of
the Court's decisional processes. Moreover, this argument overlooks
the fact that the Court
cided the issue in
another case. 504 U. S., at 43-45. In
this case, a comparable response to the prudential rule precluding
review of the issue not expressly mentioned in the "question
presented" would simply note that the intervention issue was
discussed in
another section of the certiorari petition.
Most importantly, the majority misses the point of the passage
quoted from
Williams. The majority in that case noted that
"even if" the prudential rule were violated, "it would be imprudent
... to reverse course at this late stage."
Id., at 40.
9 See n. 6,
supra.
40
STEVENS, J., dissenting
was aware of that temptation at the time certiorari was granted.
Nothing has changed since then to suggest dismissal is now more
appropriate.
On the merits, I am persuaded that the Federal Circuit's routine
practice is as objectionable as the practice we recently condemned
in
Cardinal Chemical Co. v.
Morton International,
Inc., 508 U. S.
83 (1993).10 While it is appropriate to vacate a judgment when
mootness deprives the appellant of an opportunity for review,
United States v.
Munsingwear, Inc., 340 U. S. 36 (1950), that
justification does not apply to mootness achieved by purchase.
Judicial precedents are presumptively correct and valuable to the
legal community as a whole. They are not merely the property of
private litigants and should stand unless a court concludes that
the public interest would be served by a vacatur.
Respondent argues that a policy of routinely vacating judgments
whenever both parties so request will encourage settlement. It
will, of course, affect the
terms of some settlements
negotiated while cases are pending on appeal, but there is no
evidence that the
number of settlements will be appreciably
increased by such a policy. Indeed, the experience in California
demonstrates that the contrary may well be true.ll Moreover, the
facts of this case indicate that any
10 In
Cardinal Chemical we held the Federal Circuit
should discontinue its practice of routinely vacating as moot
declaratory judgments of patent validity upon affirmance of a
finding that the patent had not been infringed.
11 Barnett, Making Decisions Disappear: Depublication and
Stipulated Reversal in the California Supreme Court, 26 Loyola (LA)
L. Rev. 1033, 1073 (1993). In the years before the California
Supreme Court endorsed routine vacation of judgments on settlement,
there was a natural experiment in the California courts of appeals.
While most courts routinely granted vacation, Division One of the
Fourth Appellate District never did. Comparison of the rates of
settlement in that court and the rest of the California appellate
courts suggests that the denial of vacation did not discourage
settlement. In fact, the rate of settlement in Division One of the
Fourth Appellate District was twice as high as that in other
appellate courts.
41
benefit in the form of saving work for the appellate court will
probably be offset by the added burdens imposed on trial courts in
later proceedings. On the other hand, it seems evident that a
regular practice of denying these motions unless supported by a
showing of special circumstances will create added pressure to
settle in advance of trial. The public interest in preserving the
work product of the judicial system should always at least be
weighed in the balance before such a motion is granted. I would
therefore reverse the judgment of the Court of Appeals.
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